GANI Vs. ABDUL SHAKOOR

JUDGEMENT

(1.) THIS is a second appeal by Gani and Gulab against the decree of the Judge, Small Cause Court, Jaipur, and has arisen in the following circumstances.

(2.) THE appellants brought a suit against Maliya, who is now represented Abdul Shakoor, for possession of a verandah and a room in a certain hiveli situate in Chaukari Topkhana Desh in the City of Jaipur. THEir case was that the haveli belonged to their father Ilahi Baksh, and that after his death, it descended to them and their mother Mst. Bhuri, and their two other brothers, who were made pro forma defendants Nos. 2 and 3. It is further alleged that Maliya who was the sister's son of Ilahi Baksh, was allowed to live in the verandah and room in dispute in 1936 presumably because of near relationship. Maliya thus continued to live as a licensee. In 1944, how-ever, he brought a suit for partition of the house, and in that suit he excluded this portion of the haveli, thus showing that he claimed exclusive ownership of it. Consequently, the present suit was brought by the appellant to regain possession of the disputed portion, and also incidentally to remove the cloud on their title cast by the actions of Maliya. It may be mentioned that there was a mortgage deed in favour of Maliya by Mst. Bhuri of 1919. THEre was litigation in that connection between Mst. Bhuri and Maliya, and though the mortgage deed purported to be for the whole house, the court held that it was valid only to the extent of Mst. Bhuri's one-eighth share. THE suit was, therefore, decreed for one-eight share of the haveli. and it was in that connection that Maliya had filed the suit for partition.

(3.) LASTLY, we come to the main argument on behalf of the appellants that even accepting the rinding of the lower appellate court, a decree for joint possession should have been passed in favour of the appellants. Learned counsel for the respondent, on the other hand, urges that as there was no alternative plea asking for joint possession in case the court found that the plaintiffs were not entitled to exclusive possession, the lower appellate court was right in dismissing the suit. Considering, however, that the respondent himself took the plea that the house belonged to Chhotu and that he and the plaintiffs were joint owners of it as heirs of Chhotu, it does not, in our opinion, lie in the respondent's mouth to say that a decree for joint possession should not be given. It is. true that there was no alternative plea; but it is well-settled that where the plaintiff claims a larger relief than he is entitled to, the suit should not be dismissed but the plaintiff should be given the relief he is entitled to, unless the ground on which the lesser relief can be granted is inconsistent with the case of the plaintiff, as set out in his pleadings, or would lead to a determination which would embarrass the defendant. Reference in this connection may be made to Ammalu Ammal vs. Namagiri Ammal and others (A. I. R. 1918 Madras 300), which is based on Order VII, rule 7, of the Code of Civil Procedure. In the present case, we do not think that a decree for joint possession would be so inconsistent with the case of the plaintiffs or would lead to the determination of any issue which would embarrass the defendants or necessitate the addition of the parties, that we should refuse a decree for joint possession. Obviously, when a party claims exclusive possession, he claims a larger relief than if he* prayed for only joint possession. In particular, there are authorities of various High Courts which lay down that it is open to a court to pass a decree for joint possession in a case where a plaintiff comes to court asking for exclusive possession, subject of course, to the general principle, which we have mentioned above.